Trump's Pick of Neil Gorsuch for the Supreme Court: Back to the Status Quo

Donald Trump ran his campaign on implicit, and sometimes explicit ("drain the swamp," anyone?) promises of an "anti-establishment" presidency. As we see more and more though, his biggest departure from the status quo thus far has been his flair for the fanciful.

Instead of releasing a statement through his Press Secretary or addressing the public during daylight hours, Trump made sure that his pick for the current vacancy in the United States Supreme Court would be another prime-time affair. At 7pm CST, my speculations were confirmed, and Trump announced that Judge Neil Gorsuch would be his pick for the lifetime post on the highest court in the United States of America.

Honestly, this did not come as a surprise to many who have had their collective ears to the ground. To be fair, Gorsuch was NOT included on Trump's first list of potential nominees. In fact, no one from Harvard or any other Ivy League law school was included on that list -- probably due to Trump's campaign promises to shake up the status quo -- which would have been a great departure for a Supreme Court roster of Justices that currently does not include one single jurist who attended anything but an Ivy League law school.

But, as with many more potential rebuffs on his previous campaign promises, Trump presented a second list of potential nominees prior to polling. This list included multiple individuals from both Yale and Harvard law schools. As such, instead of breaking with the status quo, we will still have a high court composed only of Ivy League law grads if and when Gorsuch is confirmed. So much for throwing a wrench in things...

Now, don't get me wrong; I have a great deal of respect for Judge Gorsuch. I might not agree with all of his opinions or legal reasoning, but I do believe the man is a scholar who takes his academic and judicial responsibilities very seriously. His opinions are more enjoyable to read (as far as legal opinions go) than some of the regularly regurgitated legal analysis that many other judges and jurists produce. Some judges like to write textbooks. Some judges just like to write, and that is refreshing.

I'm an Oklahoma criminal defense attorney. Gorsuch has been a judge on my state's federal appellate circuit court (the 10th Circuit) for the last decade. His opinions are at least well-reasoned, and colleagues who have argued in front of him have noted that he is a fine jurist and a respected thinker in regards to constitutional issues. Some of his opinions have been controversial, and some of them have been overturned, but that was going to be the case from someone's perspective no matter who Trump picked.

As far as Gorsuch's confirmation chances go, there will likely be one single hurdle in his path, so long as he doesn't pull a "Douglas Ginsburg" and get outed for inhaling the devil's weed. The only realistic roadblock to Senate approval will be a potential (and long-threatened) filibuster by the Democratic members of the Senate.

Still, there are processes that could play out in which the Senate Republicans could unilaterally eliminate the potential filibuster rule, which currently requires 60 votes, versus 51 votes, to advance a Supreme Court nominee. Remember though, it was the Democrats that originally started this unilateral precedent when they got rid of the 60-vote rule for lower-court nominees back in 2013. So...sounds like a potential return to the status quo.

Truth be told, the number of Supreme Court nominees rejected by the Senate after confirmation hearings is low. It has been far more likely in the relatively recent past that a nominee would withdraw his or her name from consideration prior to risking rejection after tens of hours of grueling questions. Call me crazy, but unless some skeleton jumps out of a birthday cake hidden in Gorsuch's closet on live television, he won't be withdrawing his nomination.

So, what will the Supreme Court look like if Gorsuch is confirmed and takes Justice Scalia's seat? By all accounts, it will look a lot like the status quo.

Much has been made of Gorsuch being an originalist, meaning that he tries to interpret the Constitution from the viewpoint of the men who wrote it. The recently deceased Justice Antonin Scalia was an originalist also. That can lead to a conservative view on personal rights, but an expansive approach to those rights which protect the people from a potentially intrusive government.

Logically, Justice Scalia was something of a torch-bearer, a legal "lion" in his jungle, when the case involved an enumerated constitutional right (something written out clearly in the Constitution) such as the Fourth and Sixth Amendments. These hallmarks are judicially enforced protections -- for the people, by the people -- against a potentially oppressive and tyrannical government. These rights, along with the Second Amendment, need to be preserved and revered by a nation in the midst of uncertainty, untrust, and potential conflict.

Also remember that Gorsuch clerked for Justice Kennedy ("the swing vote") of the current Court. Consequently, Gorsuch may be more moderately conservative than some might hope or even expect. It's entirely possible that we could see a relatively stable court...conceivably a three-way, three-person split: in equal parts conservative, moderate, and liberal. After all, this would be the first time a former clerk became a colleague on the Court with the Justice he clerked for. That could create an interesting dynamic.

Frankly, that's the way it is supposed to be. Our entire government is supposed to be made of checks and balances. With an even distribution of political ideologies in the Court, there could be more balance. Most importantly though, it may allow our highest court to stay impartial and independent...not only from the other branches, but also within itself.

As we have recently seen with attempted immigration reform, the division and conflict in the government, and the knee-jerk reactions Mr. Trump has made within his first two weeks as President, maybe the status quo isn't something we need to run away from. Maybe the status quo wasn't (isn't?) so bad after all.